Articles Posted in Negligence

Given the different procedural and substantive rules that apply in medical negligence cases, distinguishing medical negligence from ordinary negligence is a fundamental issue in cases that possibly implicate medical negligence. Indeed, many attorneys are aware of the far more arduous standards that apply to medical negligence, and they will often try to purposefully describe the facts and underlying legal theories of a case in order to avoid it being placed in the ambit of medical negligence liability. Although artful pleading can occasionally be successful, courts define medical negligence broadly and, as a result, stymie many creative attorneys’ attempts to avoid these heightened rules for liability. For instance, the scope of medical negligence was an issue in a recent decision from Florida’s First District Court of Appeal, Shands Teaching Hosp. and Clinics, Inc. v. Estate Of Lawson, which addressed whether an alleged act of negligence arising from services provided at a psychiatric unit qualified as “medical negligence.”

Lawson followed a tragic accident in January 2013. The plaintiff in this case is the estate of a woman who, two months prior to the date of the accident, had been admitted to the facility for a psychiatric condition. Although she was confined in a locked psychiatric ward, the woman was able to retrieve an employee’s unattended keys and badge and abscond from the facility. The woman went to a nearby interstate, where she was struck by an oncoming truck and died. Her estate brought suit against the facility, arguing that the defendant’s action amounted to “ordinary negligence.” The facility moved to dismiss, contending that the complaint sounded in “medical negligence,” and therefore the plaintiff needed to comply with the provisions of Section 766.106(1)(a) of the Florida Statutes. Since the plaintiff did not comply with the mandatory pre-suit requirements of Section 766.106(1)(a), the facility argued that the complaint should be dismissed.

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Cruises are intended to be memorable and fun. However, a frolic on the sea is not free of risk. Indeed, the facts of a recent decision from the United States District Court for the Southern District of Florida, Pettit v. Carnival Corp., show that sea voyages are not without potential mishaps.

The accident at issue in Pettit occurred on September 24, 2013. The plaintiff in this case was a passenger on the Carnival Breeze. While at sea, the plaintiff slipped and fell, leading to various physical injuries. Once back on the ground, the plaintiff brought suit against Carnival in a Florida state court in Miami-Dade County. However, the contractual terms on the plaintiff’s ticket, in particular the forum selection clause, required that she bring suit in the United States District Court for the Southern District of Florida. Two months afterward, the plaintiff finally served Carnival. Carnival then moved to dismiss the suit based on improper forum. Realizing the error, the plaintiff then filed the complaint in federal court. This, however, didn’t solve the plaintiff’s trouble. The ticket contract also included a statute of limitations provision that afforded passengers only one year to bring personal injury suits. The plaintiff had filed her state court suit only 12 days before the expiration of the contractual statute of limitations, and by the time the plaintiff filed suit in federal court the statute of limitations had long elapsed. Carnival moved for summary judgment, asserting the plaintiff’s claim was time-barred. The plaintiff opposed, arguing that the statute of limitations should be equitably tolled. Unfortunately for the plaintiff, the trial court concluded otherwise.

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It’s often difficult for a driver who rear-ends another vehicle to avoid some form of liability. Indeed, although many other types of car accidents can occasion genuine discussion about apportioning fault between parties or determining whether a particular driver was in fact negligent, accidents involving one car rear-ending another almost invariably lead to liability for the driver who strikes the other in the back. In fact, Florida’s Fifth District Court of Appeal recently reversed part of a trial verdict that, in its judgment, inappropriately apportioned fault to the driver in a stationary vehicle that was rear-ended by another.

As noted above, this case, Bodiford v. Rollins, arose from a rear-end collision. The plaintiff was waiting to make a left turn at an intersection when the defendant’s car rammed into the back of his vehicle. The plaintiff sustained serious injuries as a result and brought suit against the driver of the other vehicle. The case proceeded to trial, after which the jury awarded the plaintiff more than one million dollars in damages. However, the jury also found the plaintiff to be 13% at fault, and the court reduced the damages award by that percentage. The defendants appealed, asserting various arguments against the jury’s ruling. In addition, the plaintiff cross-appealed, asserting that the jury erred in apportioning any fault to him and that the trial court, therefore, should have granted his motion for judgment notwithstanding the verdict.

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Although the law is fundamentally concerned with justice, justice often requires that a party take timely action to redress her harm. Indeed, negligence cases are subject to various statutes of limitations, and many would-be litigants have gone to court only to find that their claims, irrespective of their merits, have been lost because of the passage of time. Although many statute of limitations cases relate only to a plaintiff’s failure to take timely action, a recent decision from the First District Court of Appeals, Russ v. Williams, involved an intriguing situation when a defendant’s “mischief” helped assure that a plaintiff’s claims would be time-barred.

Although the merits of the claims were ultimately not reached in Russ, the case arose from a motor vehicle crash on May 15, 2009. The plaintiff alleged that the defendant’s negligence led to the accident and filed the complaint in this case in November 2012. The complaint was served on the defendant on March 1, 2013. On May 23, 2013, one week after the statute of limitations had elapsed, the defendant moved for summary judgment, arguing that his wife was actually the one operating the vehicle at the time of the crash and was the sole owner of the vehicle. The plaintiff moved to amend the complaint in order to add the defendant’s wife as the proper party. The defendant opposed the motion, arguing that the defendant’s wife was an entirely new party and that any claims against his wife were time-barred because the statute of limitations period had passed. The trial court granted the plaintiff’s motion to amend the complaint but reserved judgment on any statute of limitations issues. The claims against the original defendant were dismissed.

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Many medical negligence actions are characterized by information asymmetry. Indeed, although a person may be aware that she has been injured, she may be unaware of the source of this injury and, moreover, whether the conduct leading to the injury was actually negligent. Given the imbalance in information that often exists, discovery is of particular importance in many medical malpractice cases. In fact, since 2004 the Florida Constitution has contained a provision that affords citizens a right to access particular information in medical negligence cases. The breadth of this provision, Fla. Const. article X, section 25, was recently addressed in a decision from Florida’s Second District Court of Appeal, Bartow HMA, LLC v. Edwards.

Edwards arose from an alleged act of medical negligence during a gallbladder removal surgery that resulted in the severing of the plaintiff’s common bile duct. Following this surgery, the plaintiff brought suit against the hospital where the surgery was performed and the physician who performed the procedure. During discovery, the plaintiff served the hospital with a request for all documents created within the five years prior to the procedure that related to the physician’s treatment of any patient and for all documents related to the hospital’s review of the plaintiff’s care and treatment. The hospital did not comply with the request in its entirety, arguing that certain documents were subject to privilege and thus beyond the bounds of discovery. Among the documents the hospital declined to produce were those related to a peer review of the adverse medical incident at issue that was requested by the hospital’s counsel. The plaintiff brought various motions seeking disclosure of the documents, and the trial court eventually entered an order requiring the hospital to produce all documents related to its peer review of the adverse medical incident. The hospital then brought this interlocutory appeal.

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Can an airline be subject to negligence liability for denying boarding to a customer? Although it did not fully address this question, a recent decision from the United States District Court for the Southern District of Florida, Pipino v. Delta Air Lines, Inc., assures that we will get more discussion of the issue.

The plaintiff in this case was a ticketed passenger for a flight from New York to Tampa on Delta Airlines, the defendant in this case. The plaintiff alleges that an agent for the airline denied her the privilege of boarding because the agent believed she was intoxicated. The plaintiff, however, alleges that she was suffering from a panic attack and that the airline’s refusal to let her board the plane and failure to obtain medical attention for her caused both emotional and psychological harm. Following this incident, the plaintiff brought suit against Delta to redress these injuries. The airline moved to dismiss, arguing that venue in the Southern District of Florida was improper and that the plaintiff’s claims were otherwise preempted under federal law. The district court, however, found both arguments unavailing and denied the airline’s motion to dismiss.

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Last year, we posted about the Supreme Court of Florida’s decision in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), which held that caps on noneconomic damages in wrongful death medical negligence cases were unconstitutional under the equal protection clause of the Florida Constitution. In a recent case, North Broward Hospital District v. Kalitan, the Fourth District Court of Appeal, which encompasses both Palm Beach and Broward County, addressed a question that remained in the wake of McCall: whether the reasoning in McCall applies with equal force to noneconomic damages caps in personal injury medical negligence cases. In a decision with a far-reaching impact, the Fourth District Court of Appeal concluded that it does, and it held that noneconomic damages caps in personal injury medical negligence cases are also unconstitutional.

The events that led to the Kalitan litigation occurred in 2007. That year, the plaintiff in this action went to North Broward Hospital District for outpatient surgery to treat carpal tunnel syndrome in her wrist. The procedures required the plaintiff to be placed under general anesthesia. During intubation, which was required for administration of the anesthesia, the plaintiff’s esophagus was perforated. Prior to this incident, the plaintiff had never had bodily pain beyond symptoms associated with carpal tunnel. After awaking from the procedure, the plaintiff complained of severe pain in her chest and back. The anesthesiologist was notified. Unaware of the perforation, the anesthesiologist ordered that the plaintiff be administered a drug for chest pain. The plaintiff was later discharged, and a friend drove her home. The following day, the friend went to check on the plaintiff and found her unresponsive. The friend took the plaintiff to the emergency room, where the perforation was discovered. The plaintiff was rushed for emergency surgery. The plaintiff was in a drug-induced coma for several weeks thereafter and had to undergo several more surgeries and intensive physical therapy. She continues to suffer with persistent physical pain and mental disorders arising from the trauma that occurred.

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Visitors to a Renaissance festival expect to see jousts and sword fights, but they don’t typically expect to be the one dealing with an inadvertent injury at the end of the festivities. However, injuries can happen in the most unexpected places, including as described in a recent decision from the Second District Court of Appeal, the parking lot outside a Renaissance festival. In that decision, Cook v. Bay Area Renaissance Festival of Largo, Inc., the Second District needed to determine whether a trial court erred in granting summary judgment in a trip and fall case.

As noted above, the plaintiff in this case was injured while navigating the parking lot of a local Renaissance festival. Festival volunteers had directed the plaintiff to park in the overflow parking lot. There was an unpaved walkway on a patch of municipality-owned land between the parking lot and the grounds where the festival was being held. Following the festival, the plaintiff was returning to the car when she tripped on an exposed pipe that was on the patch of municipal land. There was nothing obstructing the plaintiff’s view of the pipe. Indeed, the plaintiff’s husband and other festival attendees attempted to warn the plaintiff of the pipe before she tripped. A festival volunteer removed the pipe shortly after the fall. The plaintiff brought a premises liability suit, arguing that the festival was negligent in maintaining the property. The festival moved for summary judgment on her claim against them, arguing that there was not evidence that they had control over the land where the injury occurred. There was conflicting evidence, however, regarding whether festival volunteers had directed her to use the walkway. The trial court granted the festival’s motion for summary judgment, and the plaintiff appealed.

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Although most people have a basic understanding of the effect a statute of limitations has on a person’s ability to bring suit, the application of a statute of limitations can often be more complicated than expected. For instance, the Fourth District Court of Appeal recently ruled in an interesting case that involved when the statute of limitations begins to run when the injured party is incapacitated and, as a result, needs to have a guardian appointed.

The decision, Barrier v. JFK Medical Center Limited P’ship, arose from an alleged case of medical negligence that occurred in 2010. The plaintiff in this action is the mother, and legally appointed guardian, of the injured person. Her adult son had been transported to a hospital from a substance abuse facility after he attempted to commit suicide. Fewer than 10 hours after his discharge, the same substance abuse facility contacted the hospital to report that the patient was in a lethargic state and unresponsive. He was returned to the hospital, where drugs were discovered in his possession. Within two hours of his arrival, he was discharged again and into the custody of the police. While in police detention, he suffered from a cardiac arrest resulting from a drug overdose and went into a coma from which he has not emerged.

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Negligence liability is fundamentally predicated on the expectation that people should exercise reasonable care in their actions when such actions have the potential to cause harm to another. Although the courts play the principal role in defining the scope of “negligence,” legislatures also actively participate in defining the scope of reasonable care. For instance, Florida law provides that “the discovery of the presence of a foreign body . . . commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence . . . .” § 766.102(3)(b), Fla. Stat. (2011). Pursuant to this rule, courts will place the burden on a defendant in cases when a plaintiff has established that a foreign object was left in him or her. Given the shift in the burden, establishing the presence of a foreign body can have a meaningful impact on medical malpractice litigation, and litigants may battle about the rule’s applicability to the issues presented in their case. The dynamics of the rules application were recently addressed in a recent decision from the Fourth District Court of Appeal, Dockswell v. Bethesda Memorial Hospital, Inc.

The plaintiff in Dockswell had been admitted to the defendant hospital for surgery. The procedure included the placement of a drainage tube. A nurse came in the following day to remove the tube, and the plaintiff was conscious at this time. The plaintiff saw the nurse remove the tube and felt no immediate discomfort. However, a 4.25-inch section of the tube was inadvertently left in the plaintiff. Four months later, after the plaintiff complained of continued pain in the region where the section of tube was left, a CT scan revealed the presence of the tube, which was removed during a subsequent surgery. The plaintiff then filed the current medical negligence suit, and the parties presented conflicting expert testimony on whether the nurse complied with the applicable standard of care. During a charge conference prior to trial, the plaintiff sought the inclusion of a jury instruction based on the foreign object rule. The trial court denied the requested instruction, finding that the plaintiff had to present direct evidence of negligence because the foreign object rule is limited to situations when the plaintiff is uncertain about the person responsible for the negligence. The jury ultimately returned a verdict favorable to the defendant, and the plaintiff appealed, arguing that the trial court erred in denying his foreign object jury instruction.

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